Opinion: "Happy Fingers" To Be Gagged By The Cybercrime and Computer Related Crimes Act

We are living in an era where instant information and data are readily and easily accessible at our fingertips. It is almost hard not to share or post any of the information and data that we come across on a regular. In addition to this, we live for capturing moments, whether those moments are precious birthday videos or videos that capture surreptitious moments between two lovers not intended for public eyes. It is therefore important that at the ease with which we receive information, we can dispense it just as easily.  

It is this burgeoning rise of information and data instantaneity that has resulted in the need for legislation that will govern and combat the unlawful use of data and any illegal computer-related activities. Often at times, we assume the most common and “obvious” acts of cybercrime to be: (i) hacking into one’s bank account and stealing their money or (ii) hacking into their computer to steal personal information so as to extort money from them or formerly common - (iii) the actual stealing of a computer or laptop. 

The Cybercrime and Computer Related Crimes Act (No 18 of 2018), (the Cybercrime Act) is comprehensive legislation that encompasses any and every crime that can be associated with the use of a computer or digital device. The rationale at the time the act was drafted was that Parliament was cognizant that cybercrime is an ever-evolving field which is amenable to the creation of new threats of varying degrees and forms daily. This piece of legislation and the definition of cybercrime is purposefully broad and all-encompassing and includes, amongst other things, cyber-stalking, cyber harassment, offensive electronic communication, and revenge pornography. 

The Cybercrime Act is much-welcomed legislation as there seems to be some recourse for those who are targets of the Happy Fingers gang (The Google definition of “Happy Fingers” is summarized as follows: “the random pressing of letters excitedly when using instant messenger or typing on any social media platform, often done without any thought of the consequences or ramifications of what you are typing and subsequently sharing…”)

Often, we all post haphazardly and are happy to click away without thinking of our actions. It is crucial that we know what the consequences of our actions will be. 

The Cybercrime Act is that legislation which will gag and deter those impulsive individuals. The Act creates offences and imposes sanctions which are mostly fines and, in the alternative, a term of imprisonment or even both.

Below are the 6 actions/activities that you should avoid as a Happy Finger - 

Act 1: Cyber Harassment 

Cyber harassment usually pertains to unconsented conduct, such as threatening or harassing emails/instant messages, blogging or creating websites dedicated solely to tormenting an individual. This is harassment in terms of section 16, and someone found guilty of cyber harassment is liable to a fine not exceeding P10 000 or imprisonment not exceeding 6 months or both). 

Act 2: Cyber Stalking 

This is the use of the digital platforms, email, or other electronic communications to stalk; generally, it refers to a pattern of threatening or malicious behaviour, including the threat of harm and maliciously making contact with someone, which contact, and behaviour poses a genuine threat to them and their families. A person found guilty of cyberstalking in terms of section 17 will be fined an amount of P20 000 or be imprisoned for a period not exceeding one year or both. 

Act 3: Offensive Electronic Communication 

This act involves deliberately and maliciously posting private, sensitive, or even offensive information on social media platforms about an individual for the public to see. Under section 18 such an act is punishable, and a person found guilty is liable to a fine of P20 000 or imprisonment not exceeding one year or both. 

Act 4: Distribution of Child Pornography 

Sharing or distributing, whether on WhatsApp or any other social media, graphic pornographic material involving a child (a child is anyone under the age of 18) is punishable under section 19 and anyone found guilty of this is liable to a fine not exceeding P100 000 or imprisonment for a term not exceeding 5 years or both. 

Act 5: Revenge Porn 

Distributing and posting sexual videos taken during happier times with your former partner without their consent, with the intention to humiliate them and cause them distress is a crime under section 20 and anyone found guilty is liable to a fine of P40 000 or imprisonment not exceeding 2 years or both. 

Act 6: Racist and Xenophobic Material 

Posting and publishing material that is racist or xenophobic even sharing such material is an offence. Insulting someone on the basis of their colour, ethnicity, nationality or tribe is a liable offence in terms of sections 21 and 22 and a person found guilty of such an offence must pay a fine of P40 000 or face prison time not exceeding two years or pay both a fine and do prison time. 

So, before you:

  1. happily, click away, share or publish material that contains sexually explicit conduct of an underage person; or
  2. seek revenge as a scorned partner by publishing and distributing sexual videos or pictures; or;
  3. spew racist or xenophobic remarks, post and share racist content; and/or  
  4. vent, divulge personal and private information of another and post content of an offensive nature on social media platforms by making that person the topic of your blog or status – 

THINK of the ramifications of your actions! As much as it might be tempting to be the first to share or publish something - you could find yourself paying a hefty fine, behind bars or even both just because your fingers were happily dancing on the keyboard.

By Lebogang George

Lebogang George is an admitted attorney in Botswana and an associate in the Corporate Commercial Department at Desai Law Group. She spent more than a decade working in South Africa. It is in South Africa where she expanded her knowledge and focus on Corporate Commercial Law as well as Data Privacy and Data Protection Law, IT Governance as well as Cyber Security. 

Lebogang's experience in Data Protection and Privacy Law spans across South Africa and the European Union and has advised clients in both public and private sectors. She has recently taken a keen interest in the Botswana Data Protection Act and provides advice on the Botswana DPA. 

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